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TMI Blog2019 (12) TMI 70X X X X Extracts X X X X X X X X Extracts X X X X ..... Complex Mumbai, Holdings as follows: "25. In view of the above, exercising discretion & powers u/s 149 of the Customs Act, 1962, I authorize the subject 122 Bills of Entry Listed in Annexure 'A" hereto, to be Amended- a) to read the classification of the subject goods as 85252017 as against 85252019 mentioned in these Bs/E; b) to extend benefits under notification no 21/2002-Cus Sr No 313 dated 01.03.2002 to the subject goods viz Fixed Wireless Telephones, covered under the Bs/E; c) to delete claim of EPCG benefits in respect of the import of the subject goods, mentioned in the subject Bs/E." 2.1 Appellants imported Fixed Wireless Telephones (FWT) under cover of 122 Bs/E during July 2003 to July 2004. They cleared the goods a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t "...since there is no dispute that the technology used in the Fixed Wireless Telephone LSP 340 and the hand held mobile phone is the same, there is no warrant to limit either the tariff entry or the exemption notification to hand held cellular phones. Neither the range nor the size should make the difference." The order of the Hon'ble Supreme Court has been examined in the Board and it has been decided to accept the order as all relevant issues have been considered by the Apex Court. 4. In view of the above, it has therefore been decided to withdraw Board Circular No. 57/2003 dated 27-06-2003 and to restore status-quo ante prevailing prior to the issuance of the said circular. Consequently, the benefit of notification No. 21/2002 - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the assessment order could have been changed modified only by way of an appeal before the Commissioner (Appeal). [Priya Blue Ltd 2004 (172) ELT 145 (SC), Flock India Pvt Ltd 2000 (120) ELT 285 (SC), BPL Telecom Ltd [2015 (325) ELT 457 (SC)], Thiru Arooran Sugars Ltd [2010 (254) ELT 45 (MAD)]. 4.1 We have considered the impugned order along with the submissions made in appeal and during the course of arguments on appeal. 4.2 While allowing the revenue appeal, Commissioner (Appeal) has observed as follows: "7. I have carefully gone through the facts of the case and submissions made by both the parties. It is admitted that appeal before Hon'ble Supreme Court was filed by the M/s Tata Teleservices Ltd against the provisional assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd - 2009 (235) ELT 146 (Tri- Chennai) it was held that classification of goods is as much a part of assessment as valuation. Hence the classification cannot be treated as clerical mistake and allowed to be amended under section 149." 4.2 We do not find any merits in the submissions made by the Appellant in appeal in view of the Tribunal decision in case of PLG Power Ltd, referred by the Authorized representative. Hon'ble Madras High Court has in case of Thiru Arooran Sugars Ltd [2010 (254) ELT 45 (MAD)] interpreting Section 149, held as follows: "7. Section 149 of the Customs Act reads as follows : "149. Amendment of documents.- Save as otherwise provided in sections 30 and 41, the proper officer may, in his discretion, authorise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore this Court was nonchallenge of an appealable order where the adjudicating authority had passed an order which is appealable under the statute, and the party aggrieved did not choose to file an appeal. This Court held that it is not open to the party to question the correctness of the order of the adjudicating authority subsequently by filing a claim for refund on the ground that the adjudicating authority had committed an error in passing the order. The provisions of the Central Excise Act, 1944 came up for consideration. The Court has observed: "10. Coming to the question that is raised, there is little scope for doubt that in a case where an adjudicating authority has passed an order which is appealable under the statute and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd, it was specifically mentioned in the order of the Assistant Collector that the assessee may file an appeal against the order before the Collector (Appeals) if so advised." (emphasis supplied) 40. In Priya Blue Industries Ltd. v. Commissioner of Customs (Preventive) 2004 (172) ELT 145 (SC) = (2005) 10 SCC 433, the Court considered unamended provision of Section 27 of the Customs Act and a similar submission was raised which was rejected by this Court observing that so long as the order of assessment stands, the duty would be payable as per that order of assessment. This Court has observed thus: "6. We are unable to accept this submission. Just such a contention has been negatived by this Court in Flock (India) case (2000) 6 SCC 650 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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